One place the retirement of Justice Sandra Day O'Connor will make a difference is in congressional redistricting law. O'Connor wrote the opinions and cast the deciding votes in the Supreme Court's four Shaw v. Reno racial redistricting decisions in North Carolina in the 1990s and supported the majority opinion upholding the hyperpartisan Republican redistricting in Pennsylvania in Vieth v. Jubelirer in 2004.
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O'Connor brought to the redistricting cases a unique credential: She is the only member of the current court to have won elections and to have served in elective office. She was elected as a Republican to the Arizona Senate in 1970 and 1972 and was elected majority leader in 1972, and she was elected to the Maricopa County Superior Supreme Court in 1974 before she was nominated, by Democratic Gov. Bruce Babbitt, to the Arizona Supreme Court in 1979.
As a Supreme Court justice, O'Connor saw nothing wrong—or at least nothing unconstitutional—in legislators' considering partisan advantage in drawing district lines, an issue she faced when the Arizona legislature was called on to redraw district lines after the 1970 census. In Shaw v. Reno, she proclaimed that, while it was impermissible for the legislature to consider race in redistricting, it was quite all right for it to consider partisan advantage. North Carolina's Democratic legislature, in creating a second black-majority (or nearly black-majority) district, would have been wrong to do so if it was basing its decision on race. But, she said, it was all right if this Democratic legislature was just trying to increase the Democratic percentage in the district in question. Of course, there is no better way to increase the Democratic percentage than to increase the black percentage, since blacks vote about 90 percent Democratic.
The practical effect of O'Connor's decisive opinions in Shaw v. Reno was, many critics have argued, primarily aesthetic. If the district lines on the map seemed too grotesque, she found them impermissible (her opinions quote descriptions of the districts in question in the book of which I am coauthor, The Almanac of American Politics). But if they were more compact, they were all right. In real life, this placed limits on politicians—black Democrats and Republicans—trying to maximize the number of black-majority (or nearly black-majority) districts. Black Democrats favored such districts because they provided safe seats for them or their political allies; Republicans favored them because they bunched heavily Democratic precincts in a few heavily Democratic districts and left many adjacent districts safe Republican or more accessible to Republicans.
O'Connor's justification of politically motivated redistricting was echoed in Justice Antonin Scalia's opinion, in which she and three other justices concurred, in Vieth v. Jubelirer. Pennsylvania's plan was undeniably partisan. But, Scalia wrote, no "judicially manageable standards for adjudicating political gerrymandering have emerged." Justice Anthony Kennedy concurred in the result but wrote that some plans could still be found to be unconstitutionally partisan. But it's hard to imagine more partisan plans than Pennsylvania's.
O'Connor's departure will change the state of the law. Effectively the current law is that racial redistricting is all right if the boundaries are not too grotesque and that partisan redistricting is fine. Most Bush appointees would probably vote to disapprove racial redistricting more than O'Connor and to allow partisan redistricting as she did. At least one, 10th Circuit Judge Michael McConnell, would seem likely from his previous writings to go the other way and to cast a fifth vote against at least some partisan redistricting.
